Scholarship Highlight: Firearms Technology, Bruen & Dobbs, and Structural Originalism
The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.
A new article by Center faculty co-director Joseph Blocher and Christopher Buccafusco that is forthcoming in the Texas Law Review examines the drive for gun safety innovation from a law and technology perspective. Blocher and Buccafusco argue “that the distribution and availability of violence technologies in the United States is driven by a distinctive set of market and legal forces, and that these forces affect the pace and direction of innovations, sometimes helpfully, but just as often harmfully.”
In a new draft posted to SSRN, Rebecca Brown, Lee Epstein, and Mitu Gulati contend that—under the stare decisis factors the Court applied in Dobbs to overrule Roe v. Wade—"Bruen poses a threat to the stability, objectivity and determinacy necessary to the rule of law.” And in an article forthcoming in the University of Pennsylvania Journal of Constitutional Law, Ian Bartrum advocates an originalist approach to the Second Amendment that “focus[es] on constitutional structure and design [rather than text alone]. . . [and] asks how the Constitution intended various political institutions to interact when faced with new and unforeseeable policy disputes.”
Joseph Blocher & Christopher Buccafusco, Technologies of Violence: Law, Markets, and Innovation for Gun Safety, Texas L. Rev. (forthcoming)
Abstract:
Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this "instrumentality effect," and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.
But fully understanding, let alone addressing, the problem of violence requires accounting for not only regulation but the economic and legal forces shaping the instruments that inflict and resist it-what we call the technologies of violence. Just as violence itself can be permissible and even desirable (as in cases of justified self-defense) or not (as in cases of criminal misuse), innovations in violence technology can both improve and threaten public safety. As the most prominent form of that technology, guns make the point particularly clearly. Historically, innovation has made guns more lethal-a change whose overall impact on public safety is contested-but it also has the potential to make them safer for users and others, for example through better reliability, safety switches, smart gun technology, microstamping, and other technological enhancements.
In this Article, we identify and evaluate the complex and intertwined roles of markets and law in driving-and in some cases deterring-gun safety innovation. For a variety of reasons, legal efforts to incentivize certain safety innovations like smart guns have failed, even as markets have taken off for innovations designed to cope with gun violence, such as gun detection cameras and bulletproof backpacks. At the same time, statutory and constitutional law stifle and in some cases forbid safety innovations, for example by broadly immunizing gun manufacturers from regulatory and tort liability and through Second Amendment doctrines that protect increasingly powerful weapons while limiting government's ability to enact new rules regulating them.
Rebecca L. Brown, Lee Epstein & Mitu Gulati, If Roe Must Go . . . So Must Bruen, posted to SSRN
Abstract:
The Supreme Court has explicitly linked the concept of stare decisis to the protection of judicial legitimacy. In Dobbs, Justice Alito's opinion set forth five factors that called into question the legitimacy of Roe v. Wade, and found that they required an abandonment of the 50-year-old privacy right, for the sake of the rule of law. The very next day, however, in Bruen, the same Court enhanced gun rights by articulating a new methodology for evaluating the validity of gun regulations, relying on a search for centuries-old historical analogues of present-day gun restrictions. We now have data by which to examine how Bruen's new test has fared in the lower courts, through the lens of the Dobbs factors. Applying those criteria in light of our empirical findings, we conclude that Bruen poses a threat to the stability, objectivity and determinacy necessary to the rule of law: If Roe had to go, so must Bruen.
Ian Bartrum, Structural Originalism: A Better Theory of the Second Amendment, U. Penn. J. of Const’l L. (forthcoming)
Abstract:
This article describes and defends an alternative approach to constitutional originalism, and uses this approach to justify a better theory of the Second Amendment. Rather than fixate on the text and hypothesized accounts of original public meanings, it recommends a historical focus on constitutional structure and design. This more holistic use of history asks how the Constitution intended various political institutions to interact when faced with new and unforeseeable policy disputes. It generally does not privilege the normative or ideological judgments of an earlier society but seeks instead to identify the political institutions the Constitution entrusted to make those judgments in a changing world. The Court’s role is thus to preserve the historical structure of political decision-making; not enforce the historical policies themselves.
A structural originalist account of the Second Amendment first identifies the relevant natural rights from the Lockean tradition—the right to revolution or political resistance, and the right to private self-defense. The Constitution assigned care of these distinct rights to distinct institutions, each an instantiation of the sovereign People. The constitutional right to revolution fell to the universal militia, while the common-law right to self-defense rested with juries. This shared understanding of the new federalist structure is perhaps most evident in several high-profile trials from the period just after the founding, none of which contemplated a constitutional right to bear arms for purposes of self-defense. Thus, the structural distinction at the heart of the original Second Amendment protected the militia’s ability to exercise the right of revolution, but left the common law of self-defense in the care of state courts and juries.
It is unsurprising, then, that in the early republican years many states regulated the weapons of private conflict without ever implicating the Second Amendment or its state analogs. It is true that in the 1850s some abolitionists began to claim an “individual” right to revolution as justification for armed resistance to slavery, but this was far from the mainstream view when the War began. After the War, when Congress enacted legislation and ultimately the Fourteenth Amendment to combat ongoing racial subordination in the South, it is clear that the goal was simply to end racial discrimination; not supplant the substance of the common law or create a general federal police power. Contemporaneous constitutional commentary and the Court’s decision in United States v. Cruikshank accordingly confirm the states’ continuing authority to regulate private violence and the scope of common law self-defense-—so long as blacks and whites are treated alike.
Structural originalism thus produces a common-sense account of the Second and Fourteenth Amendments for our deeply troubled times; one which permits states to regulate self-defense and the weapons of private violence in racially nondiscriminatory ways.